(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/birth injury case and its proceedings.)

PRINCIPLES REGARDING OSTENSIBLE AGENCY

In California, an agency relationship between a principal and an agent can be actual or ostensible. (Civ. Code, § 2298.) An example of an actual agency relationship is the relationship between an employee (the agent) and an employer (the principal). (Civ. Code, § 2299.)

An agency is ostensible where the principal causes a third person – intentionally or through negligence – to reasonably believe that the agent is acting on the principal’s behalf. (Civ. Code, § 2300.) Under Civil Code section 2334, a principal is bound by the acts of his ostensible agent but only to those persons, without fault, who have acted in good faith on the conduct of the agent. (Civ. Code, § 2334.) The issue of ostensible agency is normally a question of fact and the burden of proof rests with the party asserting the existence of that type of relationship. (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1458; Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 502-503.)

In Mejia, the California Supreme Court addressed the principle of ostensible agency in the context of patients at hospitals. In Mejia, plaintiff sought treatment in an emergency room at Community Hospital of San Bernardino for neck pain and stiffness. Following X-rays, the radiologist reported that he saw a congenital fusion of the neck but nothing more. It was later discovered plaintiff’s neck was actually broken and she was paralyzed. The hospital, who was not the radiologist’s employer, obtained a nonsuit and Fourth District Court of Appeal reversed.

The Mejia Court examined prior judicial decisions and existing statutes applicable to ostensible agency and recognized that plaintiff must establish at least three elements in order to prove ostensible agency: (1) The patient deals with the physician with the belief that the physician is authorized to action on behalf of the hospital and the belief is a reasonable one; (2) The patient’s belief is generated by some act or neglect of the principal/hospital; and (3) The patient relying on the agent’s apparent authority is not guilty of negligence. (Id. at p. 1456-1457.)

Defendants assert that there is a missing fourth element from the CACI Instructions.

In that regard, CACI Instruction No. 3709 provides as follows:
[Plaintiff] claims that [defendant] is responsible for [agent]’s conduct because [he/she] was [defendant]’s apparent [employee/agent]. To establish this claim, [plaintiff] must prove all of the following:
1. That [defendant] intentionally or carelessly created the impression that [agent] was [defendant]’s [employee/agent];
2. That [plaintiff] reasonably bleived that [agent] was [defendant]’s [employee/agent]; and

3. That [plaintiff] was harmed because [he/she] reasonably relied on [his/her] belief.

But case law and the annotations following CACI Instruction No. 3709, detail and set forth both statutory and judicial authority reflecting a fourth, missing element in order to establish ostensible agency. As stated earlier, the plaintiff relying upon the agent’s apparent authority to act on behalf of the principal must not be guilty of negligence. (See CACI Instruction No. 3709 annotations; Civ. Code, § 2334; Associated Creditors Agency v. Davis (1975) 13 Cal.3d 374, 399; Chartered Bank of London v. Chrysler Corporation (1981) 115 Cal.App.3d 755, 764 [plaintiff is required to introduce evidence that plaintiff relied on the ostensible authority of the agent without want of ordinary care. ].) (See Part 8 of 10.)